Turkey: Rule of law at risk in Turkey

6th Jan 2014

By Abdullah Bozkurt

Today’s Zaman: Perhaps not many people noticed European Union Commissioner for Enlargement Stefan Füle’s interesting choice of words a week ago when he said, “I urge Turkey, as a candidate country committed to the political criteria of accession, including the application of the rule of law, to take all the necessary measures to ensure that allegations of wrongdoing are addressed without discrimination or preference in a transparent and impartial manner.”

His reminder of political criteria with a specific focus on the rule of law was the key point in his message, which may be construed as a veiled warning, rather than an implicit threat to Turkish officials to put their house in order. He was recalling benchmarks that Turkey must fully satisfy as a candidate country. In a way, Füle struck the right chord with his reminder, which I believe summarized the critical debate taking place in Turkey: Are we going to improve fundamental rights and freedoms with utmost respect to the rule of law in this country, or are we going to backslide further, going down the path of eroding democratic gains and stripping the meaning from those lofty principles, as Prime Minister Recep Tayyip Erdoğan seems to have been doing in last couple of years in this country.

There have been two recent cases where the Erdoğan government has blatantly and flagrantly violated the rule of law in a manner that we have never seen in this country, even during the era where meddlesome generals were putting intense pressure on the judiciary. The first happened in December when the lead prosecutor in a corruption case involving tenders worth some $100 billion obtained search and arrest warrants from the court for suspects allegedly involved in corruption, money laundering and tender-rigging crimes. The Erdoğan government instructed the police and gendarmerie, two domestic security services operating in cities and rural areas, to disregard the prosecutor’s orders.

The government tried to justify this non-compliance with an overnight executive decision rushed through to save the suspects, which included Erdoğan’s son as well, according to media reports. Both the high judicial council of Turkey and top administrative court, two key institutions that act as checks against the abuse of power by the executive, decided that the hasty government decree ordering security services to inform the government on ongoing investigations conducted by prosecutors violated the principle of the independence of the judiciary. Yet the government still fails to comply with the court rulings, and the prosecutors and the court still do not have the suspects in custody, rendering the enforcement of court decisions ineffective. In other words, Füle’s reminder of political criteria has been grossly violated, with the rule of law turning into one man’s rule in Turkey.

The second incident that dealt a big blow to this principle just occurred on the first day of the new year, when gendarmerie and rural police informed the local prosecutor’s office in the Kırıkhan district of Hatay province near the Syrian border that they had been tipped off about a truck allegedly transporting arms to Syria. On the order of the Hatay provincial prosecutor, whose jurisdiction covers terror-related offenses, local prosecutors tried to execute a search warrant on the truck. Yet both gendarmerie and police were prevented from complying with the prosecutor’s orders after the Hatay governor, acting on behalf of the Erdoğan government, instructed security forces to stand down and let the truck go.

The governor’s written order, leaked to the press, confirmed that the truck driver and an escort car manned by intelligence officers were carrying out orders according to directives from the prime minister’s office to Turkey’s secretive spy agency. Yet this did not justify the interference in judicial prerogatives, because neither the governor nor the prime minister himself has the authority to defy a prosecutor’s orders. Yet the Erdoğan government has shamelessly done exactly that, prompting prosecutors to file a criminal complaint against the governor.

As a result, Erdoğan has further bolstered his image of being an authoritarian leader who wants to act with impunity. He does not seem to care about judicial review of his executive decisions, as was also exemplified recently with the summary replacement of hundreds of senior police chiefs, regardless of whether they were involved in corruption investigations implicating government officials or not, without offering any justification. As the nation witnesses a terrible state crisis where the executive has usurped the powers of the judiciary, Turkey’s state leader President Abdullah Gül has been simply watching from sidelines, hoping to benefit from the crisis. His two comments on the situations so far fell far short of Füle’s plain and bitter truth.

Faced with huge legal challenges on corruption charges as well as other illicit and perhaps illegal activities sanctioned by his government, Erdoğan has adopted a two-track game plan to save himself. The first is to blame all these problems on outsiders acting in collaboration with domestic partners in a major conspiracy and act of treachery targeting Turkey. He does not offer any compelling evidence to back these claims, as his intention is simply to shape public perception for those that are ready to buy into conspiratorial schemes. This is a very familiar pattern of his rule.

The second and perhaps most dangerous method is that Erdoğan tries to overcome his problems by scoring at the ballot box, as if his all legal troubles will go away with the judgment of voters. But the ballot box cannot pass a legal judgment on these cases, which would amount to usurping the role of the courts. That is another hypocrisy the Erdoğan government has been trying to sell the Turkish public. He has repeated this argument hundreds times at rallies, daring critics of his rule to establish a political party and challenge him at the ballot box. He even asked prosecutors and judges to drop their judicial robes and to compete with him in elections. That shows the narrow scope and the limited extent of Erdoğan’s understanding of democracy and the rule of law.

There are too many holes in this line of defense. For one, politicians should not be immune from criminal prosecution although they enjoy freedom in political decision-making as part of political responsibility. In criminal cases, judges decide on the basis of the law, while in political decisions, the ultimate judges are the voters. The general rule accepted in democracies is that politicians are accountable for criminal acts and negligence they commit both in their private capacity and in the exercise of their public office. By constantly reminding people about the ballot box, Erdoğan tries to sell criminal responsibility in the form of political responsibility, as if political actors may commit crimes with impunity.

The fact that Erdoğan tries to change the rules of the game that were clearly set out before the game started violates articles of the European Convention on Human Rights (ECHR), a convention that Turkey has adhered to. Turkey accepted the rulings of the European Court of Human Rights (ECtHR) as binding on the nation as well. Article 7 of the convention, derived from the principle of the rule of law, emphasizes principles like legal certainty, predictability, clarity, proportionality and equal treatment. What Erdoğan has done in the two legal cases mentioned above scorns each and every principle mentioned here.

It is true that “abuse of office” charges leveled against politicians should be interpreted narrowly and applied with a high threshold, as explained by the Venice Commission of the Council of Europe (CoE). Yet if politicians act for personal gain or violate the fundamental rights of others, this protection is not valid. In crimes like corruption, politicians should be held accountable, just as ordinary citizens are.

Under Erdoğan’s rule, Turkey is sliding quickly down a slippery slope and the rule of law is on the brink of collapse. It may very well be condemned for violating Article 18 of the convention, which prohibits the misuse of power in restricting rights and freedoms while failing to take specific measures to ensure the effective independence of the judiciary. Perhaps this is what Mr. Füle was trying to tell his Turkish interlocutors about how serious the situation is for Turkey. It is not just about complying with the EU rules, but also abiding by the rules of the CoE bloc, of which Turkey is both a full member and a founding member.

Füle’s new counterpart, Mevlüt Çavuşoğlu, the EU minister, did not seem to have received this message kindly, as he accused Füle — without naming him — of prejudice and bias in his first remarks as minister. In the first TV interview a couple of days later, he described the criticism of Turkey as a mere “perception problem” that can be restored easily when the Turkish government explains its case to its European friends. In a long interview, he parroted Erdoğan’s line of conspiracy and boogeyman theories about those who want to harm Turkey and are jealous of the nation’s recent accomplishments in the economy and foreign policy.

It is quite unfortunate for a man who served as the president of the Parliamentary Assembly of the Council of Europe (PACE), where both the Strasbourg-based rights court and Venice Commission are integral parts of the institution. By the way, as a former president of PACE, I believe he is still a member of the Venice Commission. If a man of such caliber does not understand the gravity of the risk to the rule of law in Turkey, no one should expect Mr. Erdoğan to grasp the danger in Turkey. And that is a pity

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